Verdict reached in "killing and culpability" case

Readers who participated in last month's "Tale of Two Homicides: On Killing and Culpability" exercise may be interested to know that the jury has reached a verdict in one of the two featured cases. After several days of deliberations, a jury rejected Andrew Hoeft-Edenfield's claim of self defense, convicting him of second-degree murder in the stabbing death of a UC Berkeley fraternity man during a drunken confrontation. Scheduled to be sentenced next month, the 22-year-old faces a prison term of 16 years to life.

The San Francisco Chronicle and CBS News have more.

Brain research: Hippocampus hot, fMRI not

Court bans fMRI lie detection evidence

fMRI lie detection has been hailed as a technological breakthrough that could revolutionize legal cases by providing hard evidence about who is lying and who is telling the truth. But judges, not convinced of the brain scan's real-world validity, are just saying no.

Whereas general research about the fMRI has been admitted in the sentencing phase of some criminal trials, fMRI data has yet to be allowed in either the civil or criminal arenas as evidence of an individual's veracity.

Alexis Madrigal over at Wired magazine has been providing excellent, blow-by-blow coverage of the legal battles. In the latest skirmish, a judge in Brooklyn, New York did not even let the proposed fMRI evidence get as far as a Frye hearing, at which the plaintiff would have had to prove it was generally accepted as reliable in the relevant scientific community.

The civil case involves a woman who is suing her employer for alleged retaliation. Her attorney had sought to introduce fMRI data as evidence that a witness was telling the truth. But the defense successfully argued that, even if the fMRI data were accurate, it would infringe on the province of jurors, who in our legal system are supposed to decide the credibility of witnesses.

Critics say the scientific reliability and validity of the fMRI is far from established. If introduced in court, they say, its colorful graphics might mislead jurors and judges and derail justice. But, as Madrigal points out, this latest ruling suggests that, even if scientific reliability and validity issues are eventually settled, legal questions will remain.

Daubert hearing today in psychiatrist's fraud case

Today, the fMRI is being subjected to a Daubert evidentiary hearing in a federal case in Tennessee. Psychiatrist Lorne Semrau, charged with Medicare fraud, is seeking to introduce fMRI data as evidence of lack of intent.

The prosecution, seeking to prevent the fMRI evidence, will be calling two experts to testify about its scientific limitations, according to ScienceInsider. The two are Marcus Raichle of Washington University in St. Louis, a neurologist and veteran neuroimaging researcher, and Peter Imrey, a biostatistician at the Cleveland Clinic Foundation. Both served on a 2003 National Academy of Sciences panel that issued a critical report on the scientific validity of polygraph lie detection. Whichever way the judge rules, it could establish precedent for future cases, Stanford University law professor Henry Greely told ScienceInsider.

As I reported last year, a similar case in California in which a man sought to use fMRI evience to prove his innocence of child abuse charges was unsuccessful.

"These cases demonstrate that the collision between fMRI technology and the legal system is likely to be long and messy," concludes Madrigal, who in addition to writing for Wired is a visiting scholar at UC Berkeley's Office for the History of Science and Technology.

This season's hot brain regions

With the fMRI decidedly out of fashion in the legal arena, if you want cocktail party trivia about what topics in brain research are hot, you can get it from Neuroskeptic, a cool neuroscience blog out of the UK. The hippocampus (memory) is popular, but even more popping this season are the orbitofrontal cortex and cingulate cortex. Neuroskeptic theorizes their popularity owes to the fMRI, which makes them easier to study.

Forensic brain-scanning resources

For those of you who are interested in this area, several prominent media have recently featured analyses of forensic use of brain-scanning technology. Nature magazine did a nice overview, asking the frequently raised question of whether it is ready for prime time.

This followed a piece at the online news site Miller-McCune entitled, "A Mind of crime: How brain-scanning technology is redefining criminal culpability."

In its week in review section, the New York Times tagged off of that latter story, asking the provocative question: If all our mental states can ultimately be reduced to neurophysiological conditions, and there is really no such thing as free will, how can people be held accountable for crimes?

That philosophical question is addressed in another interesting article forwarded to me by blog subscriber Marsha from PhysOrg.com, explaining that "Free will is an illusion, biologist says."

And yet more online resources:

"For the law, neuroscience changes nothing and everything," by Joshua Greene and Jonathan Cohen.

Mind Hacks has excellent critical analysis of the science of brain scanning. For example, there's a post on the claim that brain scanning can diagnose Post-Traumatic Stress Disorder: "Brain scan diagnoses misunderstanding of diagnosis."

"Beware 'voodoo' brain science," blog post, March 10, 2009

Wired article: Brain Scans as Mind Readers? Don't Believe the Hype by Daniel Carlat

Calif.: Attack on custody evaluators quashed

The California Assembly's Judiciary Committee has quashed the proposal to strip quasi-judicial immunity from family court evaluators in California that I reported on recently. The bill garnered widespread opposition from judges, attorneys, psychologists, mediators, and other professionals involved with the family courts.

In an insightful analysis, Judiciary Committee counsel Leora Gershenzon wrote about the bill's potential unintended consequences to the courts and to the very children it was ostensibly meant to protect:

Suppose the parents are locked in a bitter custody battle, with one parent raising allegations of child abuse. Today, the court may appoint an expert to look into the allegations. If this bill becomes law, the court may not be able to find an expert to assist the court in gathering information on which to base a decision. Even if the court does find a willing evaluator, the evaluator, if he or she does not have absolute proof that the parent is abusing the child, may be very reluctant to raise such claims … for fear of being sued by the potentially abusive parent. Without this information, the court may unknowingly award custody to the child abuser, the very opposite goal of this legislation....

[Or] consider the situation where one parent has significant sums of money. Suppose this parent has been bullying the other parent, and the children, and dragging on the underlying custody litigation for years. The evaluator appointed in this case, again assuming one can be found, would almost certainly know that if she says anything too negative about the wealthy parent that she will be sued down the road. Assuming the evaluator chooses to continue the evaluation, she may, out of fear of future litigation, simply write a vague report with little information to help the court in making its difficult decision. Without that critical information, the court may award custody to the bullying parent and take the children away from the parent who has been trying to protect them.

The California Judges Association vigorously opposed the bill, stating it would cause significant hardship for the courts. It cited the 1990 opinion of Howard v. Drapkin, which held that quasi-judicial immunity was essential for professionals who help the overburdened judiciary: "Without such immunity, such persons will be reluctant to accept court appointments or provide work product for the courts' use. Additionally, the threat of civil liability may affect the manner in which they perform their jobs." Wrote the Judges Association:

Never has the Howard holding been truer than today. Consider the Los Angeles Superior Court, which conducts the largest alternative dispute resolution (ADR) program in the country. Tens of thousands of mediations, arbitrations, evaluations, and settlement conferences take place each year in LA.... Los Angeles Superior Court is already laying off employees and closing courtrooms to make ends meet. It relies heavily on ADR to administer justice efficiently and effectively while reducing the backlog of cases. Strip neutrals of their quasi-judicial immunity and Los Angeles Superior Court, along with the rest of the Judiciary, is sure to be overburdened by the additional weight of having to try all the cases that would otherwise have been taken care of through ADR.

I am informed that at last week's hearing, the bill's author, Assembly member Jim Beall, agreed to amend the bill to instead establish a framework for a statewide grievance system for parents in the family court system.

Some sort of a quality-control mechanism is essential to protect against shoddy child custody evaluations. This benefits everyone -- parents, the courts, and the majority of hard-working, ethical professionals in the field. However, the need for a brand-new grievance mechanism is less clear, because California law already mandates that each county establish grievance procedures for family court cases. (Here are sample forms from San Diego County and Santa Clara County.)

Unfortunately, local compliance with this law (Rule of Court 1257) is uneven, encouraging parents who are dissatisfied with an evaluator's report or testimony to file complaints with the state Board of Psychology. So, rather than setting up an entirely new system with lots of unknowns, a better solution might be for all of the counties to implement the procedures that are already mandated.

The defeat of Beall's poorly thought out proposal is certainly welcome news. As opponents noted, the consequences could have been catastrophic for both family courts and the families who use them. If professionals were stripped of the legal protections that allow them to feel confident enough to issue ethical and neutral opinions, the most qualified and ethical evaluators -- those who are in high demand and have plenty of other types of work to fall back on -- would have fled this high-conflict arena in droves. This in turn would have left only shoddy practitioners, driven the costs of evaluations beyond the reach of all but the rich, and further overburdened other state services.

However, we still don't know what Beall intends with this grievance procedure. Who will be chosen to evaluate the evaluators? What qualifications and knowledge will they have? How will they be appointed and what will assure their neutrality and expertise? What remedies will exist if fault is found with an evaluation? Will this body have the ability to impose sanctions, thereby driving up the cost of malpractice insurance, a cost which will ultimately be passed along to the consumers? Much remains unknown.

Litigious parents are the wealthy extreme

When I reported on this issue two weeks ago, I unwittingly dipped the tip of my pinkie finger into the lake of vitriol in which high-conflict child custody cases float. I was deluged with comments, most of them unpublishable because they contained slanderous comments about individuals involved in specific litigation.

I guess I should have expected this. After all, the parents who end up in high-conflict custody battles are the angriest and most litigious fraction of divorcing parents. The courts call upon psychologists and other experts to assist in only a tiny minority -- somewhere between 2 and 4 percent -- of the messiest and most complex cases. Many of the parents that psychologists evaluate are so consumed by pathological narcissism that they are incapable of seeing their role in damaging or destroying their own children.

An example of the extremes to which parents with the financial resources may go if unchecked is the case of Segal v. Lynch, in the news today. Moses Segal, a developer whom a court described as "an extraordinarily wealthy man" with a net worth of more than $100 million, sued co-parent Cynthia Lynch for allegedly alienating the couple's two children from him. In a potentially precedent-setting case, a New Jersey appellate court has ruled that a parent may sue for infliction of emotional distress, but only if the other parent's conduct is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Segal did not meet that burden, the court ruled, dismissing the lawsuit under the parens patriae doctrine because of its potential to damage the children. As the New Jersey Law Journal reports:

The court described the case as a novel one, pitting 'the fundamental principles of a child's best interests against the right of a civil claimant to obtain compensation for his or her injuries from a tortfeasor.' The panel found the 'overarching force driving this civil action' was not the best interest of the children, who would be in the middle of a litigation 'tug-of-war' where liability would turn on showing [that] outrageous and malicious acts by Lynch 'severely compromised' Segal's bond with them. As key witnesses, they would be subjected to psychological examination and questions about what their mother and father said and how it made them feel, with their responses used by one parent against the other.

Segal's attorney said the father may appeal the ruling to the state Supreme Court.

In my own brief foray into high-conflict child custody work, I came to regard the professionals who were willing to stick it out with vengeful parents as practically saints. So, it is hard for me to fathom why a public servant such as Assemblyman Beall would want to target these professionals and the overburdened courts that rely on them. As I wrote previously, this is the polar opposite of the trend in other U.S. states, which over the past couple of decades have extended greater statutory protections to custody evaluators who are targeted by frivolous, manipulative and mean-spirited complainants.

Kudos to the Judiciary Committee for its wisdom in rejecting this dangerous proposal.

Recommended reading:

"Tearing the child apart: The contribution of narcissism, envy, and perverse modes of thought to child custody wars," by Michael Donner (a child custody evaluator, special master, and chair of the Ethics Committee of the California Psychological Association, Psychoanalytic Psychology, 2006

Graphics credits: (1) Kungfootv; (2) Oape (Creative Commons license)

"CSI Effect": Fact or fiction?

Since introduced by Time magazine in 2002, the "CSI Effect" has become a cultural staple, imbued with the imprimatur of fact. The judicial system and media discuss it as a grave problem; the FBI has even produced a video warning of its impact. Just last week, the Economist of London issued an uncritical report asserting the reality of the effect, based on an upcoming article in Forensic Science International.

However, as Mind Hacks pointed out, both the Economist story and the underlying FSI article rely mainly on anecdotal evidence. The scientific verdict is not yet in.

Indeed, when I last discussed the phenomenon here, two years ago, a study by Michigan Judge Donald Shelton was raising doubts. Judge Shelton found scant evidence to support claims by prosecutors that jurors' unrealistic demands for hard scientific evidence were causing unjustified acquittals. As the debate continues, I thought it time for an update.

I find it ironic that a phenomenon being blamed for injecting a biased expectation of science into the courtroom has not in itself been subjected to much scientific scrutiny. After all, anecdotes are not science; they can be used to prove almost anything.

As it turns out, some legal scholars are putting the CSI Effect to empirical scrutiny, and -- guess what -- a measurable effect in the predicted direction is hard to prove. In fact, if Crime Scene Investigation and other enormously popular forensic TV shows are having any effect, it may be in the opposite direction -- toward making juries more conviction-prone.

Mind Hacks provided links two excellent scholarly analyses, both available online and well worth reading. The first, by Simon Cole, a Criminology, Law and Society professor at UC Irvine, and doctoral student Rachel Dioso-Villa, was published last April in the Stanford Law Review. The second, by media law professor Kimberlianne Podlas of the University of North Carolina, was published in October in the Loyola of Los Angeles Entertainment Law Review.

Podlas initially devised a creative plan: She would ask prosecutors to give her details of cases in which they believed an acquittal was due to the CSI Effect; then she would have defense attorneys review the case files for alternate explanations. But, she found, 19 of the 20 cases provided to her by prosecutors had actually resulted in convictions, thereby disproving the effect.

Lacking any "real" CSI cases to analyze, she devised a mock jury case in which she manipulated the strength of the scientific evidence. She found no evidence of a difference in outcome between heavy and light viewers of the TV show Crimes Scene Investigation. As she wrote:

"What is labeled a CSI Effect may more accurately be described as a rationalization embraced by members of law enforcement who find themselves on the losing side of a prosecution. By attributing a loss to CSI's wrongful influence, a prosecutor can obtain an explanation yet maintain a belief that an acquittal was misguided. Although this cognitive rationalization is understandable, it should not be mistaken for empirical proof that the CSI Effect operates anywhere other than in the minds of those proposing it."

In their excellent critical overview, Cole and Dioso-Villa go further, suggesting a propaganda parallel between the CSI Effect and the "litigation explosion" myth promulgated in the 1970s through a well-funded insurance industry campaign against civil plaintiff's attorneys. As in that instance, popular belief persisted even after social scientists thoroughly debunked the claimed explosion in litigation:

"Tort reformers' narratives captured a much greater share of media attention than did those of scholars…. Indeed, in the wake of media claims about the litigation explosion, socio-legal scholars documented that media coverage of civil law overwhelmingly emphasized plaintiff victories and high punitive damage awards. Thus, the supposed existence of a litigation explosion became educated common sense among jurors and even judges."

Remember the McDonald's coffee spill and the microwaved poodle, urban legends still infamous today? These tales, Cole and Dioso-Villa argue, are akin to the "horror story" anecdotes of the CSI Effect, such as the supposed case in which a jury acquitted a rapist despite incriminating DNA evidence, just because soil found in the victim's cervix was not tested:

"Echoing the litigation explosion, CSI effect discourse is widely disseminating through the American public the belief that television drama is disadvantaging criminal prosecutions. And yet, the available evidence does not support this claim. Indeed, the available evidence suggests that the opposite may just as easily be the case: forensic-themed police procedural dramas may actually advantage the prosecution in criminal cases."

Cole and Dioso-Villa: Investigating the ‘CSI Effect’ Effect

As shown in the above table, Cole and Dioso-Villa's analysis of several hundred media reports since 2002 revealed not one, but six claimed effects of forensic television shows on popular culture, depending upon the constituency doing the talking. The most dominant of these, the "strong prosecutor's effect," maintains that watching crime dramas makes jurors more likely to acquit guilty defendants. But, the scholars argue, the available evidence suggests an opposite effect:

"Jurors who are consumers of the popular media might believe that prosecutors are typically disadvantaged in criminal trials; that high expectations for forensic evidence are 'unreasonable'; and that criminal convictions are becoming increasingly rare and difficult to achieve. Jurors who believe these things might be more sympathetic to prosecutors out of sympathy for the perceived underdog or in attempt to correct for the perceived excesses of antecedent juries. Claiming to be disadvantaged is a familiar trope in trial advocacy, especially in opening and closing arguments; prosecutors frequently point out that they bear the burden of proof, whereas defense attorneys often refer to their lack of resources or to the awesome power of the state."

This is a similar conclusion to that of Podlas, who wrote:

"If there is a CSI Effect, narrative theory and common sense suggest that it will benefit law enforcement. CSI features the fantastical world of forensics and smart police work. …This story may cultivate the notion that forensic scientists and their methods are legitimate and reliable, thus bolstering the prosecution’s case…. Indeed, scientific evidence is very seductive to jurors, and they tend to overvalue its probity and overestimate its infallibility."

Although the CSI Effect pertains to criminal court while the Litigation Explosion myth targeted the civil realm, they share a similar distrust of jurors, that is, of the ability of common citizens to be fair and find the truth. This lack of faith, from my experience as a court observer over several decades, is misplaced.

Hat tip: Mind Hacks

Criminal Justice and Behavior: Free articles

During the month of May only, Sage Publications is offering free access to select articles from the 2009 volume of Criminal Justice and Behavior. Selections of potential interest to my readers include the following:

The Prediction of Violence in Adult Offenders: A Meta-Analytic Comparison of Instruments and Methods of Assessment
by Mary Ann Campbell, Sheila French and Paul Gendreau

Closing The Revolving Door? Substance Abuse Treatment as an Alternative to Traditional Sentencing for Drug-Dependent Offenders
by Tara D. Warner and John H. Kramer

Inferring Sexually Deviant Behavior from Corresponding Fantasies: The Role of Personality and Pornography Consumption
by Kevin M. Williams, Barry S. Cooper, Teresa M. Howell, John C. Yuille and Delroy L. Paulhus

Credit goes to Jarrod Steffan, a forensic and clinical psychologist in Wichita, Kansas who specializes in criminal forensic psychology, for alerting me to this special offer.

"Hebephilia: Quintessence of Diagnostic Pretextuality"

New from Behavioral Sciences & the Law ...

I never set out to become an expert in this terra incognita. But, alas, here I am. Despite my mixed feelings, I am excited to announce that Behavioral Sciences & the Law has just published my research article deconstructing this pseudoscientific construct. Here is the abstract:

Hebephilia is an archaic term used to describe adult sexual attraction to adolescents. Prior to the advent of contemporary sexually violent predator laws, the term was not found in any dictionary or formal diagnostic system. Overnight, it is on the fast track toward recognition as a psychiatric condition meriting inclusion in the upcoming fifth edition of the Diagnostic and Statistical Manual of Mental Disorders. This article traces the sudden emergence and popularity of hebephilia to pressure from the legal arena and, specifically, to the legal mandate of a serious mental abnormality for civil commitment of sex offenders. Hebephilia is proposed as a quintessential example of pretextuality, in which special interests promote a pseudoscientific construct that furthers an implicit, instrumental goal. Inherent problems with the construct's reliability and validity are discussed. A warning is issued about unintended consequences if hebephilia or its relative, pedohebephilia, make their way into the DSM-5, due out in 2013.

After providing the history and scientific status of hebephilia, I conclude:

Significant unintended consequences are likely if novel syndromes of primary benefit to the sex offender commitment industry are incorporated into the upcoming edition of the DSM. First, at a time of mounting controversy over partisan influence and lack of scientific rigor in the DSM diagnostic system, critics will seize on this as a glaring example of arbitrary and unscientific use of psychiatric diagnosis in the service of a pragmatic goal. This could have the paradoxical effect of reducing the scientific credibility of the DSM and the fields of psychiatry and psychology more broadly. In the forensic arena, where the diagnosis will most often be invoked, it may paradoxically invigorate defense challenges on the grounds that psychiatry is being deployed in a pretextual manner. In the end, hebephilia will come to haunt not only those who are civilly committed on pretextual grounds, but the entire mental health field, for years to come.

Links to more articles on this topic can be found on my HEBEPHILIA RESOURCES PAGE; my blog essay from 2007 on the "Invasion of the Hebephile Hunters" is HERE.